国际商法英文案例.doc

_国际商法英文案例1John told Bob that he would lease him his farm for the next three years. Prior to entering into possession of the farm, Bob asked John if he could purchase the farm. John agreed to sell the farm to Bob for $500,000. Later in the conversation, John asked Bob if he would agree to pay off a $10,000 debt owed to John by Bobs brother, Andy. Bob agreed. Bob said that he would have his lawyer prepare the agreement for the farm purchase and that he would deliver it.Bob brought by the written agreement a few days later. Before John had signed the agreement, Mary learned that the farm was being sold to Bob and the terms of that transaction, and she called John and made an offer of $600,000 for the farm on the condition that John repaint the main house and erect a fence around the shop on the farm prior to closing. John accepted, and a written agreement was signed which contained a provision requiring the main house to be repainted prior to closing. Johns lawyer had prepared the agreement. After the written agreement with Mary was signed, she asked John if he would also paint the storage shed, and he agreed that he would. At closing, neither the house nor the storage shed had been painted and the fence had not been erected. However, the transaction was closed and deed delivered. Bob, upon learning what had occurred, filed suit for specific performance of the written agreement that he had delivered to John asking in the alternative that he have specific performance of the oral lease agreement. John answered denying Bobs claims, and he filed a counterclaim against Bob for the amount of the debt Andy owed John. Mary, who had been named a defendant, answered, denying Bobs claims, and asking the court to affirm her agreement with John and further order that John repaint the main house and the storage shed and erect the fence. 2Dave tells Mark that there is an ocean of oil underneath his land (a knowing falsehood, intending to defraud Mark into buying the property for $20,000. Unbeknownst to Dave and Mark, Peter overhears Daves statement. The next day, believing the statement to be true, Peter makes an unsolicited offer to Dave to buy the land from him for $25,000, far more than it is worth ($5,000). Dave sells him the land. Nothing is said in their negotiations about oil, it was a simple offer that was immediately accepted. Six months later, and after drilling 3 dry holes at a total cost of $100,000, Peter discovers that Daves story was a big lie when Sally, Daves ex-employee, told him that she had heard Dave brag that he was really gonna put the britches on Mark by telling him there was (snicker, snicker) an ocean of oil beneath that worthless hardscrabble crust. She related that she heard this the night before Pete overheard Daves statement to Mark.3J.W. Southworth and Joseph Oliver were ranchers in Grant County, Oregon俄勒岗州. Oliver and his wife decided to sell over 2,900 acres of land in Bear Valley and asked Southworth, who owned land adjoining the sale tract, whether he would be interested in buying. Southworth said he was very interested in the land and would attempt to arrange financing for the purchase; he asked Oliver to let him know the price as soon as Oliver decided on it. Several weeks later, Oliver sent Southworth and three other ranchers a letter briefly describing the land and stating a price Of $ 324,419 and other specific terms of sale. Four days later, Southworth wrote, stating: I accept your offer. Oliver refused to sell, arguing that his letter was not an offer but merely an invitation to negotiate. Southworth filed suit for specific performance of the alleged contract. The trial court ruled in Southworths favor, and Oliver appealed. Was the trial courts decision right?4In the fall of 1977, Rhen Marshall received a mailed Purolatoradvertising circular entitled Christmas Comes Early at Purolator. The circular described premiumswhich could be selected when ordering Purolator merchandise. The premiums varied according to the order size: Deal 5A stated that, for an order for 100,000 pounds of Purolator brand products, Purolator would send its customer a premium of a new 1978 Buick Electra automobile and 100 EK - 6 Kodak Instant cameras. Puralator stated, You will be billed $ 500.00 for the package which has a manufacturers suggested retail value of $17,450.00 .Rhen Marshall placed an order for over 100,000 pounds of Purolator oil filters and also ordered Deal 5A as outlined in your brochure. The advertising circular did not contain provisions for billing or for discounts. Rhen Marshalls order requested a 5 percent truckload discount and a 30-60-90 day billing. (In previous dealings) between these parties, a 30-60-90 day billing meant a discount of 2 percent if paid within 30 days, a discount of 1 percent if paid within 60 days, or payment in full at the end of go days. ) Purolator rejected Rhen Marshalls order, and Rhen Marshall filed suit for breach of contract. 5First Texas Savings Association promoted a $ 5,000 Scoreboard Challenge contest. Contestants were to complete an entry form and deposit it with First Texas. A random drawing would pick the winner, who would receive an $ 80 savings account with First Texas, plus four tickets to a Dallas Mavericks home basketball game chosen by First Texas. If the Mavericks held their opponent in the chosen game to 89 or fewer points, the winner was to be awarded an additional $ 5,000 money market certificate. On October 13, 1982, Yvonne Jergins deposited a completed entry form with First Texas. On November 1, 1982, First tried to amend the contest rules by posting notice at its branches that the Mavericks would have to hold their opponent to 85 or fewer points before the contest winner would receive the $ 5,000. In late December Jergins was notified that her entry form had been drawn and that she had won the $ 80 savings account and tickets to the January 22, 1983, game against the Utah Jazz. The notice contained the revised （修订）contest terms. In the game the Mavericks held the Jazz to 88 points. Jergins filed suit when First Texas refused to pay the $ 5,000 and the trial court granted a summary judgment in her favor. 6In April of 1975, Bio-Zyme Enterprises, a manufacturer of livestock feeds, began selling feed to Ken Vanderhoof, a feed dealer（饲料经销商）, on open account. Vanderhoof received monthly statements from Bio-Zyme showing all purchases. At the bottom of each statement the following sentence appeared: Accounts not paid within 30 days will on our billing date (the 26th day of each month) be charged 1 percent each month. Whenever a finance charge was imposed, this was conspicuously noted on the statement. By April of 1976, Vanderhoof and his company, Preston Farm and Ranch Supply, owed欠 Bio-Zyme over $ 45,000. When Bio-Zyme filed suit on the account, Vanderhoof argued that he had not agreed to pay the 1 percent finance charge. Was he right?7WaiYer of Agreed Terms Stands On 13 June 1988, a Hong Kong Vehicle Spare Parts Company, and a Chinese imported vehicle maintenance service center entered into a contract pursuant to which the Service Centre agreed to purchase various Japanese-made vehicle spare parts and fittings and vehicle maintenance equipment from the Hong Kong Company for US$ 100,000. The first shipment was to be shipped by the end ofJune 1988, and no later than 10 July 1988. After the agreement was signed, the Hong Kong Company informed the Service Centre on 17 June 1988 that the goods were out of stock in Hong Kong and the prices had risen. On 20 June 1988, the Service Centre agreed that if the quality could be assured, it would accept similar products from Japan or Korea, but there should be immediate delivery. The parties, however, did not make a new agreement on the prices for these products. On 23 June 1988, the Hong Kong Company delivered IlK $187,569-worth of spare parts and fittings to the Service Centre. As the Service Centre lacked foreign exchange, it only remitted partial payment ofUS $11,766 (equivalent to Hk$: 91,790) to the Hong Kong Company and an amount of HK $ 95,779 was left outstanding. As a result of the buyers failure to pay, the Hong Kong Company applied for arbitration in December 1988 seeking payment of the outstanding amount. The Service Centre argued that the Hong Kong Company s claim for HK $ 95,779 was untenable, because this amount was calculated on the basis of prices of genuine Japanese-made products whereas the Hong Kong Company had delivered muchcheaper non-Japanese products. The arbitration tribunal found that there were clear stipulation in the contract as to the prices and country of origin of the goods. After the conclusion of the contract, the parties agreed to change the country of origin. The Service Centre agreed to accept a portion of non-Japanese products, but no new agreement was reached on the prices for the non-Japanese products. The Service Centre only found out that prices of the products were different when the Hong Kong Company sent it the invoices. The tribunal found that the Service Centre had received the invoices.Comprehension Questions for Case: 1). Do you think the Service Centres act constituted a breach of the contract because of the fact that it only paid part of purchase price and failure to pay the outstanding sum?2.) Did the Service Center accept the price referred to in the invoices?3). Was the Service Centre liable for the outstanding sum under the Chinese law?4.) What do you think should happen if the Service Centre raised an objection to countries of origin and the prices of spare parts?8.In the following case, Simon was the managing-director of the Cynamon products Ltd and Cynthia a member of it . She had made a special journey to a paint factory to order 100 gallons of varnish清漆 . He didnt know it and sent off to a cut price firm , which was always advertising in Cabinet Makers World ,for 150 gallons of it .They were stuck with 2 lots of the stuff .Simon thought he had already posted the letter and accepted their offer and couldnt cancel. Cynthia supposed that she could cancel hers because it was verbal so it was not binding.9Dickinson v Dodds On Wednesday, 10 June, the defendant delivered to the plaintiff a written offer to sell certain property .The offer was to remain open until “9:00 a. m. Friday, 12 June.” On Thursday ,11 June ,the plaintiff was informed by a Mr. Berry that the defendant had sold the property to someone else .At 7 :00 a.m. on 12 June the plaintiff “accepted” the offer . The court held there was no contract between Dickinson and Dodds . The offer was effectively revoked (withdrawn ) before “acceptance” by communication of the withdrawal by a reliable third party . 10The complaint alleged that defendants were dealers in salt in Milwaukee; that plaintiff was a dealer in salt in La Crosse, and accustomed to buy in large quantities, which fact was known to defendants; that on September 19, 1882, defendants wrote plaintiff the following letter: “Dear Sir: In consequence of a rupture in the salt trade, we are authorized to offer Michigan fine salt, in full carload lots of 80 to 95 bbs., delivered at your city ,85 per bbl. to be shipped per C&FWRRCO. Only. At this price it is a bargain, as the price in general remains unchanged. Shall be pleased to receive your order.”Plaintiff replied to this letter on September 20 by sending the following telegram: “Your letter of yesterday received .You may ship me two thousand(2000) barrels Michigan fine salt, as offered in your letter. Answer.”The complaint further alleged that “On September 21,1882, defendants attempted to withdraw said offer contained in their letter of September 19,1882. Plaintiff thereupon demanded of defendants the delivery to him of 2,000 barrels of Michigan fine salt, in accordance with the terms of the said offer, accepted by plaintiff as aforesaid, and offered to pay them thereof in accordance with said termsNevertheless, defendants utterly refused to deliver the same, or any part thereof, by reason whereof plaintiff sustained damages to the amount of eight hundred dollars.The counsel for plaintiff claimed that the letter of defendants was an offer to sell to plaintiff, on that terms mentioned, any reasonable quantity of Michigan fine salt that he might see fit to order, not less than one carload. The counsel for defendants claimed that the letter was not an offer to sell any specific quantity of salt, but simply a letter such as a businessman would send out to customers or those with whom he desired to trade, soliciting their patronage.11COMPENSATION FOR BREACH OFCONTRACT IN RISING MARKET PRICESThe parties conclude a contract for the sale and purchase of ferrosilicon 铁合金after which, the price of ferrosilicon in the international market shoots up. The parties negotiate several times to adjust the price of the goods under the contract and the buyer issues an L/C in the amount of the agreed adjusted price. In the end, the seller does not deliver the goods and breaches the contract.The dispute centres on the applicable law for determining the manner and amount of compensation.THE ARBITRATION DECISION I. Facts of the CaseOn 10 December 1990, the claimant (the buyer) and the respondent (the seller) signed an agreement by fax for the sale and purchase of 3,000 metric tones of ferrosilicon under the contract No. (91)GTCVMC002. It was stipulated in the contract that: 1. The respondent would sell to the claimant 3,000 metric tonnes of ferrosilicon to be shipped during the period from 15 January 1991 to 15 February 1991. 2. The unit price for the goods was to be US$462 per metric tonne, FOBST the port of Basuo, Hainan Province, China, with the total price US$1,386,000. 3. The buyer would pay 90 percent of the contract price for the goods by L/C upon receipt of the shipping documentation. The L/C was to be issued by American CarbonMetals Corp. on behalf of the buyer. The balance of ten per cent of the contract price for the goods was to be settled by T/T within 30 days of the date of receipt of the goods.4. A method of calculating liquidated damages was specified, stating that if the seller could not deliver the goods in accordance with the contract, the buyer would be compensated for any replacement goods it purchased. Any difference in price would be paid by the seller.5. The contract would be governed by the laws of the Peoples Republic of China.After the contract was signed, the parties amended the contract by fax. They agreed to increase the unit price of the goods to US$468 per metric tonne. All other terms remained unchanged. The claimant issued an L/C to the respondent on 9 January 1991 for an amount calculated in accordance with the adjusted price. The respondent, however, could not confirm that it was able to source the goods. After several rounds轮 of negotiations between the parties, the respondent did not deliver the goods. In its application for arbitration, the claimant requested that: 1. the respondent compensate the claimant for all losses suffered by the claimant as a result of the respondents non-performance of the contract;2. the respondent bear the arbitration fees for the case.In the annex to its application for arbitration, the claimant submitted that its losses amounted to US$404,813.11. This included:1. US$108,000 agreed by American Carbon & Metals Corp:, the partner of the claimant, and its client Tube City, Inc. as the amount of damages payable for the cancellation of a contract2. US$102,000.00 agreed by American Carbon & Metals Corp. and, its client Northcoast Minerals & Metals, Inc. as the amount of damages payable for the cancellation of an agreement3. US$64,063.11 paid to a shipping company by American Carbon & Metal Corp. for the cancellation of a booking for shipping space4. a loss of profit of US$114,7505. other losses, including the charges for issuing an L/C, transportation and travel expenses for the purpose of arbitration, which totalled US$16,000.In its submission dated 26 May 1992 , the claimant presented supplementary explanations for its claims. In the supplementary explanations, the claimant noted the price difference between replacement goods and the contract price for the goods and the calculation of the loss of profit and raised the point that according to the Convention on International Sale of Goods Contracts of the United Nations (the Convention), if the buyer did not order replacement goods and the goods had a market price, the party claiming damages may claim the difference between the contract price and the market price of the goods at the time the contract is declared void.The claimant considered the date the contract should be declared void, ie, when the parties clearly knew that the contract could not be performed, as 8 February 1991.On that day, the difference between the contract price and the market price of 75#(product category) ferrosilicon in the US market was US$292,890. The claimant considered that compensation based on this price difference was acceptable. The lawyer representing the respondent presented the following defence:1. The respondent did not dispute its breach of contract and the non-delivery of the goods pursuant to the contract and was willing to give reasonable compensation to the claimant in accordance with th